Fedweek Legal

There are many common misconceptions about what it means to be the victim of illegal reprisal. In the context of civil rights law, retaliation occurs when an employee engages in a “protected EEO activity,” management learns about this activity, and then, as a consequence, management takes negative action against the employee.

A “protected EEO activity” covers a broad range of actions. Of course, if an employee files a discrimination complaint, the complaint is a “protected EEO activity.” But there are many other actions that also constitute “protected EEO activities” and an employee who opposes discrimination, even if the employee does not file a complaint, is protected from reprisal. The following activities, for example, would be protected: complaining to a manager about discrimination, being a witness in a discrimination investigation, requesting a reasonable accommodation for a disability, supporting a co-worker who has requested a reasonable accommodation, being closely associated with someone who has filed an EEO complaint (for example, a spouse), being an EEO counselor, supporting a co-worker who has complained of discrimination, or sending a letter to Congress requesting an investigation of discrimination in the workplace.

Retaliation is outlawed because it has a chilling effect on the willingness of individuals to speak out against discrimination. An employee can prove retaliation by showing a causal connection between the employee’s protected activity and subsequent adverse treatment of the employee. An employee does not always have to show that the retaliation included an adverse personnel action. Usually, a case can be proven if there is a short time between when the manager learned of the activity and the consequential adverse treatment. If the timing is not short enough, retaliation can also be proven by showing that the agency’s alleged reasons for its actions are not legitimate.

If an employee is being subjected to retaliation, the employee must contact an EEO counselor within 45 days of the retaliation.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **